Saturday, July 5, 2014

Re-establishing religious liberty post-Hobby Lobby

Religious liberty is woven into the very fabric of our nation. It defines the boundaries of our government and serves as a measuring stick of freedom. We are a nation of diverse religious beliefs and of no religious belief. From our nation’s earliest days, our Constitution has ensured both the freedom to worship and believe according to one’s conscience, as well as freedom from the government imposing religion upon its people or coercing them to follow beliefs that are not their own. This is the very essence of religious liberty.
However, instead of being a shield to protect both religious institutions and an individuals’ right to worship and believe according to their conscience, the principle of religious liberty is being used as a sword by a range of conservative groups currently engaged in an organized effort to discriminate and impose their doctrinal views on a pluralistic nation.

The Supreme Court’s opinion in Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell (formerly known as Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius) illustrates a product of that effort. In what has simply become known as Hobby Lobby, two for-profit companies—the giant craft chain Hobby Lobby and the furniture-maker Conestoga—were fighting for their right to withhold insurance coverage for certain forms of contraception based on religious grounds. The June 30th 5–4 ruling provides clear evidence of how the conservative Roberts Court has misinterpreted the free exercise of religion to the point of absurdity by allowing the religious beliefs of the owners of for-profit, secular corporations to be used as justification to deny their employees the contraceptive health coverage that they are entitled to under federal law.

With Hobby Lobby, the Court has imposed the religious beliefs of a few on the many, burdening thousands of employees and creating legal precedence that turns the notion of secular society on its head.

American jurisprudence is rooted in a theory of religious liberty—where the freedom to exercise one’s religious beliefs is a fundamental right but one that is limited when the exercise imposes costs or burdens on others. As the Supreme Court said in Estate of Thornton v. Caldor, Inc., “The First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.”

The Hobby Lobby decision has far-reaching implications. By granting religious liberty protections to for-profit corporations, the Court has increased the number of powerful entities that can use religious liberty claims to justify avoiding the laws they don’t like and has empowered employers to impose their religious beliefs on others. While this case dealt directly with the denial of one federal benefit—contraceptive coverage guaranteed by the Affordable Care Act—its ruling will surely open the door to claims of religious liberty as justification to undermine laws protecting a host of other rights and, in so doing, impose different costs on others.

Thousands of women who work for Hobby Lobby have now been denied access to important methods of quality contraception without additional payments as part of their health insurance—despite the fact that reproductive care is crucial to women’s and family health. Beyond affecting women’s health, the Court’s ruling may serve as a slippery slope that will go even further down a road that dramatically transforms religious liberty from a fundamental value protecting genuine religious beliefs to a loophole, which could be used as an unfair advantages in the corporate world and to dictate women’s health choices, discriminate, and evade federal protections.

We must consider ways to re-establish the definition of religious liberty that our founders intended. Freedom to exercise one’s religious beliefs must protect both individuals and religious institutions, but the right must be limited when the exercise imposes costs or burdens on others.

An important first step in this effort is for Americans to consider legislative fixes to the Religious Freedom Restoration Act, or RFRA, and state-based RFRA-like legislation that provides for religious exemptions from generally applicable laws. Federal lawmakers should consider adding language to RFRA that brings it to the level that Congress intended—providing strong religious-liberty protections for those who deserve it but ensuring the provided exemptions do not burden others. In states with existing RFRA-like legislation—or in states considering RFRA-like legislation—advocates and policymakers should seek to introduce language that will put reasonable restrictions on religious-liberty protections, ensuring that religious liberty is not used as a tool to discriminate or deny needed medical care.

This could be accomplished by amending RFRA and similar legislation providing for religious exemptions from generally applicable laws to clarify that one person’s religious liberty does not allow the person to impose their beliefs on, or discriminate against, others. An example of such an amendment, might be: “This section [referring to the existing statute] does not authorize exemptions that discriminate against, impose costs on, or otherwise harm, others, including those who may belong to other religions and/or adhere to other beliefs.”

This Supreme Court decision gives for-profit corporations a power that no employer should ever have—the right to impose a burden on their workers by coercing them to adhere to religious beliefs that are not their own. It is time to re-establish religious liberty protections to what they have been throughout our nation’s history: a strong shield that protects individuals’ rights to believe according to their conscience not a sword used to impose those beliefs on others.

About the authors: Carmel Martin is the Executive Vice President for Policy at American Progress. Joshua Field serves as the Deputy Director of Legal Progress, the legal policy program at the Center for American Progress.

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